Secretaries - Chapter 11 - Handbook on International Commercial Arbitration

Peter Ashford is Solicitor of the Supreme Court and a Partner at Cripps Harries Hall LLP and is Head of the firm's Commercial Peter Ashford is a Partner and Head of commercial dispute resolution in the leading United Kingdom Firm of Cripps Harries Hall LLP, Tunbridge Wells, United Kingdom. Mr. Ashford advises on a wide range of commercial disputes with a particular emphasis on substantial commercial contract disputes, especially those involving an international aspect, partnership and LLP disputes, professional issues for solicitors and professional negligence. He is particularly experienced in complex, high value claims and acts for many international clients. He handles disputes in court, arbitration, mediation and disputes without any formal process. Mr. Ashford received his training in London and qualified in 1986. He joined Cripps Harries Hall LLP in 1987 and became a partner in 1991.

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Originally from Handbook on International Commercial Arbitration

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The use by members of the Tribunal of a secretary is now common and does much to promote the smooth and efficient functioning of the Arbitral Tribunal. Broad statements about the role of secretaries are relatively easy to frame but, at the margins, it becomes more difficult. For example, it is uncontroverted that a secretary should not be involved in the decision-making process; however, it is less clear is where that process begins and ends. Equally, it is uncontroverted that the secretary should undertake clerical tasks such as maintaining a master file or record; however, functions such as summarising the parties’ submissions or research are sometimes controversial. For these reasons, the Arbitral Tribunal should be at pains to ensure there is the highest degree of clarity of the role that the secretary will fulfil for the Arbitral Tribunal in order that the parties give an informed consent to the appointment and function of the secretary.

Institutional rules generally make no comment on the appointment of a secretary. The exception, however, appears to be Article 15(5) of the Swiss Rules of International Arbitration that provides “The arbitral tribunal may, after consulting with the parties, appoint a secretary.”

The ICC has issued a Note containing guidance on the appointment of secretaries. The Note provides that:

The duties of the administrative secretary must be strictly limited to administrative tasks . . . Such person must not influence in any manner whatsoever the decisions of the Arbitral Tribunal.

In particular, the administrative secretary must not assume the functions of an arbitrator, notably by becoming involved in the decision making process of the Tribunal or expressing opinions or conclusions with respect to the issues in dispute.

The UNCITRAL Rules are similarly silent but the UNCITRAL Notes on Organizing Arbitral Proceedings do have some very sound guidance reflecting the tensions that exist in the arbitration community.